On the last day of the 1996-97 term, the Supreme Court issued a harshly divided
5-4 decision [1] which gutted the Brady Act. [2]
Enacted in 1993, this act ordered sheriffs and police chiefs in 28 states to
conduct background checks on handgun purchasers. Handgun sales were to be
delayed for five working days while checks were conducted.

Sheriffs all over the United States
sued, arguing that Congress had no authority to order state and local officials
to perform investigations. The Circuit Courts of Appeal split, with the Fifth
Circuit Court holding for the sheriffs, and the Second and Ninth Circuits ruling
for the federal government. The cases that came to the Supreme Court were
appeals from the Ninth Circuit by Montana Sheriff Jay Printz and Arizona Sheriff
Richard Mack, consolidated with other cases.

Working with the Colorado Attorney
General's Office, I was the lead author of the amicus brief submitted to the
Supreme Court by Colorado and seven other states.

While almost all media discussion
of the Brady Act has focused on the gun control issue, an even more important
story has been overlooked--the radical change in the state/federal relationship
which the Brady Act attempted to effect. Had the Brady Act been upheld, the
Court's ruling would have been one of the most devastating blows ever suffered
by the states. Conversely, the five-Justice opinion holding Brady
unconstitutional is a watershed in judicial protection of federalism.

*190

In this article, I discuss several
federalism issues raised by Printz. First, I discuss the burden imposed
on states by the Brady Act, and arguments that minor burdens are of no
constitutional significance. I then show how the Brady Act struck directly at
our republican form of government. Third, I discuss the implications of the
Brady Act's failed attempt to expand radically the scope of Congressional power
over interstate commerce. Fourth, I detail the failures of the political process
which led to the Brady Act's gross violations of the principles of federalism. I
conclude the article with a brief analysis of the judicial role in upholding
federalism as part of the Constitutional structure of freedom. Parts of the
article include material from the states' amicus brief.

I. The Substantial Size of the
Brady Act Burden on State and Local Law Enforcement

Gun control advocates attempted to
portray the Brady Act as imposing only minor burdens on state and local
government. [3] This portrayal is incorrect.

Under the Brady Act, state and
local law enforcement officers had been forced to spend literally millions of
hours investigating handgun buyers. A Brady check usually began with contacting
the FBI's National Criminal Investigative Center (NCIC), which maintains a
partially accurate database of felony arrests and (in some cases) convictions.

If the NCIC data about an
individual showed an arrest, but not the disposition of the arrest, the law
enforcement investigator would have to contact whatever state or local source
might have knowledge of the case's outcome.

Assuming that the NCIC revealed no
felony, the law enforcement investigator was then required by the Brady Act to
conduct "research in whatever State and local recordkeeping systems are
available."[4] This research would be necessary to
discover whether the prospective handgun buyer fit under any of the federally
disqualifying categories which are not tracked by the NCIC: an unlawful user of
or addict to controlled substances; anyone adjudicated a "mental
defective" or *191who "has been committed to any mental institution"; [5]
an illegal alien; anyone dishonorably discharged from the armed forces; anyone
who has renounced citizenship; or anyone subject to certain court orders related
to domestic violence. A 1995 amendment to federal gun laws added an additional
disqualifying category not tracked by the NCIC: conviction of any misdemeanor
involving domestic violence (including purely verbal altercations).[6]

The Brady Act was a massive
unfunded mandate. As a result of bipartisan reform legislation enacted early in
1995, laws such as the Brady Act would, if enacted today, have to undergo
special legislative procedures; the federal government must now fully fund new
mandates, absent a Congressional vote not to fund a given mandate.[7]
But the important fact of Printz was not that the Brady Act was an
unfunded mandate. The problem was the mandate itself.

Like the federal Gun Free School Zones Act declared unconstitutional in United
States v. Lopez[8], the Brady Act represented a
"sharp break" from previous federal gun legislation. Before the Brady
Act, all federal gun legislation had depended on the federal executive branch
for its implementation. The Brady Act was the first and only federal gun law to
conscript state employees.

Indeed, the overwhelming mass of
man-hours necessary to implement Brady were supplied by state employees. Federal
employees had a much more minor role. Federal employees could prosecute private
citizens who violated the Act (there have been only seven prosecutions, as of
November 1997), provide limited assistance to the sheriff or police chief by
operating certain federal databases and prosecute, or threaten to prosecute,
state employees who refused to perform federal service.

Enforcement of the federal mandate
was the most coercive sort possible: ultimately, at the barrel of a gun, state
officers who failed to comply with this federal command were subject to criminal
penalties. [9] Once the Brady litigation began, the
Department of Justice (DOJ) said that it would not prosecute state and local law
enforcement officials *192who disobeyed the Brady mandate. [10] But the
Department of Justice's policy, almost certainly influenced by litigation
tactics in the Brady suits, would continue only as long as DOJ wanted it to.
There was no guarantee that a future Department of Justice would follow a
similar policy, especially in regard to any new laws (which would inevitably
have been enacted if the Brady Act were allowed to stand), that would impose
more criminal penalties on more state employees for failure to carry out new
federal laws at state expense.

To make the conscription of state
officials worse, the Brady Act did not limit itself to conscripting low-level,
line employees, such as clerks in a motor vehicle licensing bureau. Instead, the
act conscripted chiefs of police, who are expected to exercise substantial
discretion in performing important policy-making decisions.

And even more so than police
chiefs, sheriffs are charged by the people with exercising policy-making
discretion, for sheriffs are generally elected directly by the people.

As for the lower-ranking officers
and deputies who were indirectly conscripted by the Brady Act, "[p]olice
officers in the ranks do not formulate policy, per se, but they are clothed with
authority to exercise an almost infinite variety of discretionary powers." [11]
Thus, "[p]olice officers very clearly fall within the category of
'important nonelective . . . officers who participate directly in the . . .
execution . . . of broad public policy." ' [12] As a
whole, "[t]he police function fulfills a most fundamental obligation of
government to its constituency.[13]

The Brady Act did much more than
simply divert important policy-making state officers from performing their
fundamental duties under state law. Sheriffs Printz and Mack were ordered to
perform acts which state law expressly forbade. [14] Not
only did state law forbid the sheriffs to do what the Brady Act compelled,
Sheriff Mack's violation *193of state law made himpersonally liable for civil suit
under state law, for every public dollar spent in violation of the state law. [15]

If the Brady mandate had truly been
minimal, it would have been a mistake for the Supreme Court to create some kind
of "de minimis" exception to the Tenth Amendment. (The Tenth Amendment
reserves to the states and the people all powers not granted to the federal
government.)
The Ninth Circuit had asserted that Congress could impose extensive mandates on
the states, so long as the sum of all the burdens did not thoroughly disable the
states from carrying out government functions. [16] This
is analogous to a First Amendment rule in which newspapers could be ordered to
print large amounts of Congressionally-written content, so long as there was
still some room in the newspaper for the paper's owners to print content of
their own choosing. Yet, "[e]ven if a newspaper would face no additional
costs to comply with a compulsory access law and would not be forced to forgo
publication of news or opinion by the inclusion of a reply," mandated
content is a per se interference with a newspaper's editorial decision. "[T]he
exercise of editorial control and judgment," free of government mandates,
is a part of the protected core of the First Amendment. [17]
Analogously, the exercise of control and judgment by policy-making officials in
the fundamental, traditional state function of law enforcement is part of the
protected core of the Tenth Amendment. There must be no "de minimis"
exception to the First Amendment or to the Tenth Amendment.

Constitutional freedoms are rarely
destroyed all at once. "Of course, no one expects Congress to obliterate
the states, at least in one fell swoop. If there is any danger, it lies in the
tyranny of small decisions--in the prospect that Congress will nibble away at
state sovereignty, bit by bit, until someday essentially nothing is left but a
gutted shell."[18]

Despite the fervid rhetoric about
gun violence, there was no Constitutional significance to the Department of
Justice's claims about the *194supposedly benign objectives behind the Brady Act. As Justice Brandeis
warned, "[e]xperience should teach us to be most on our guard to protect
liberty when the Government's purposes are beneficent. . . . The greatest
dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning
but without understanding."[19]

Indeed, to the extent that
intentions matter, they cut against the Brady Act. While some naive persons
supported it in hopes that it would reduce gun crime, the large body of
criminological evidence both before and after the enactment of Brady
demonstrated that laws like Brady have no statistically discernable impact on
crime. For example, University of Maryland criminologist David McDowall, a
supporter of gun control, performed before and after analyses of the effects of
new or extended waiting periods in Cincinnati, St. Louis, Los Angeles, and San
Francisco on intentional deaths in those cities.[20]
McDowall concluded that 'waiting periods have no influence on either gun
homicides or gun suicides.'[21] Analysis of crime data
from every county in the United States, over a fifteen year period, found state
Brady-type laws and the Brady Act itself to have no beneficial impact on any
category of violent crime.[22]

The chief supporters of the Brady
Act, such as Mrs. Sarah Brady (for whom the bill was originally named [23])
intended the Brady Act as a "first step" in building a national gun
licensing system in which people could only have a gun if the government thought
they had a need, and self-defense would not be considered a legitimate need. [24]
The next step in implementing this system was intended to be "Brady
II," *195a Congressional bill forcing state governments to set up handgun licensing
and registration systems according to federal mandate.
Printz has made Brady II a Constitutional impossibility.

II. Republican Form of Government
Clause and the Appropriations Clause

Printz implicated not only the
Tenth Amendment's reservation of state powers, but also the Republican Form of
Government clause in Article IV of the Constitution. Under that clause, the
federal government must guarantee to each state a republican form of government.[25]

The "distinguishing feature" of a republican form of government
"is the right of the people . . . to pass their own laws in virtue of the
legislative power reposed in representative bodies, whose legitimate acts may be
said to be those of the people themselves." [26]
Under the Brady Act, the acts of a sheriff in Arizona would no longer be the
acts of the people of Arizona, but instead would be acts of the Congress.

Ohio State University law professor Deborah Merritt (a scholar cited by Justices
Scalia and O'Connor [27]) observes that "[s]ince at
least the eighteenth century, political thinkers have stressed that republican
government is one in which the people control their rulers." [28]
As Professor Merritt explains,

[f]ederal attempts to appropriate
state governmental resources in this manner deny the states a republican form
of government . . . if the national government compels the states to enforce
federal regulatory programs, state budgets and executive resources reflect
federal priorities rather than the wishes of local citizens. These results are
antithetical to the popular control exerted in a republican form of government
If the federal government could order states to implement federal programs,
the state power to tax would be dissociated from the power to spend, and
"would encourage few even casually acquainted with the *196writings of Montesquieu and the Federalist Papers to assert that the
States enjoyed a Republican Form of Government . . . ."
[29]

At the federal level, one of the
safeguards which helps protect a republican form of government is the
Constitution's Appropriations Clause: "No Money shall be drawn from the
Treasury, but in Consequence of Appropriations made by Law. . ." [30]
The clause protects republican government by requiring that federal money only
be spent (or financial obligations imposed) by the Congress, which is the body
with the exclusive authority to raise revenues, and the only branch with the
authority to impose taxes. The power to appropriate funds and the responsibility
to raise funds to be appropriated are vested in the same body. Thus, the
Appropriations Clause upholds the principle of fiscal accountability.

The Brady Act violated the
accountability principle. Congress ordered the expenditure of funds by imposing
an immense unfunded mandate, yet Congress was not the body that would have to
raise the taxes or cut spending to carry out that mandate. During the
ratification debates, not even the most dire anti-Federalists predicted that
Congress would evade the Appropriations Clause so wildly that it would, in
essence, appropriate funds belonging to state governments. Telling someone
else's employees how to occupy their labor is no different, in practice, than
taking the money that is used to pay for that labor.

While control of government
spending is an essential feature of a republican form of government, it is not
the only feature undermined by the Brady Act. One of the important traditional
safeguards of civil liberty in America has been the subordination of law
enforcement to republican control. Explaining why federal law enforcement is so
much less accountable than local enforcement, former Attorney General Edwin
Meese points out that "[i]f voters are dissatisfied with their sheriff,
district attorney, or local police force, they can vote the appropriate
officials out of office." [31] The ability of voters
to change local law *197enforcement behavior through republican means is nullified if local law
enforcement must spend its time carrying out federal directives, rather than
programs chosen by the local electorate.

When federal officials make choices
that state officials must enforce against the will of the local electorate,
another form of accountability is impaired--that the federal government bear the
entire brunt of public disapproval for federal programs which may turn "out
to be detrimental or unpopular." [32] Accountability
is diminished "when, due to federal coercion, elected state officials
cannot regulate in accordance with the views of the local electorate." [33]
Or as Professor Merritt put it, "The body that reaps electoral credit for
an initiative should also bear the risk of any political fall-out; otherwise the
representatives do not have the appropriate incentives for weighing the costs
and benefits of a program." [34]

In Mack, the Ninth Circuit
side-stepped the accountability problem by hypothesizing that since the Brady
Act received a great deal of national publicity, the public knew that the
federal government was responsible, and assigned all relevant blame accordingly.
[35] Under the Ninth Circuit's theory, everyone would
simply accept the local sheriff's or police chief's excuse, "I was just
following orders."

It is dubious to presume that this
excuse--which is often rejected in other contexts--would prove persuasive to all
persons harmed by the Brady Act. While well-informed newspaper readers may know
the Brady Act is an unfunded federal mandate, it is hardly true that almost
all--or even a majority--of the public knows this. In 1993, the year the Brady
Bill was enacted, the Luntz Weber firm conducted a poll which found that twenty
seven percent of respondents knew nothing about the Brady Bill and thirty
percent could only identify it as a "gun control" bill.[36]

Moreover, the Ninth Circuit's
hypothesis applies, at best, to persons who were unhappy with the way sheriffs
or police chiefs were enforcing the Brady Act. However, there is an entirely
different group of unhappy citizens--crime victims and other persons concerned *198about the underenforcement of state laws. It is implausible that these
citizens would all recognize that the underenforcement here was the result of
local law enforcement being burdened with the Brady Act, and that they should
direct their legitimate anger at Congress, rather than toward local law
enforcement.

III. Interstate Commerce Clause

From 1937 through 1994, the Supreme
Court always upheld assertions by Congress of the power to "regulate
Commerce . . . among the several States." [37] But in
1995, the Supreme Court took an important step to resume enforcing the
boundaries of Congressional authority; the Court struck down a federal law
setting up thousand-foot radius "gun free zones" around every school
in the United States, because the law had no real relation to interstate
commerce. [38]

In Printz, the Court was
able to find the Brady Act unconstitutional without determining whether the Act
was within the interstate commerce power. Justice Thomas suggested in his
concurrence that the Brady Act's regulation of in-state retail sales of handguns
might not be a proper exercise of the power to regulate interstate commerce. [39]
Had the Brady Act survived the Supreme Court challenge, the Act would have
resulted in an unprecedented expansion of the scope of the interstate commerce
power.

Even assuming Congress can properly
use its power over interstate commerce to regulate the intrastate sale of
handguns, the sheriffs and police chiefs were nonetheless strangers to the
handgun transaction. They would have no role in the sale, except to the extent
made necessary by the Brady Act. The interstate commerce power should not
include the power to force strangers to a commercial transaction to participate
as a third party in that transaction. For example, it is well established that
Congress may use the interstate commerce power to regulate how a white hotel
clerk deals with a black customer at a hotel that serves many interstate
customers. [40] This interstate commerce power does not
mean that Congress may order private citizens or state employees to mediate or
supervise the clerk-customer dialogue.

*199The connection between a voluntary two-party commercial transaction and a
third party who has never attempted to participate in that transaction is very
remote. Had the Court upheld the Brady Act, the interstate commerce power would
have ballooned to nearly infinite proportions, a result that "would
effectually obliterate the distinction between what is national and what is
local and create a completely centralized government." [41]

Put another way, the fact that a
given subject may come under the interstate commerce power does not mean that
Congress may mandate how a state should enforce the law regarding the subject.
"The allocation of power contained in the Commerce Clause, for example,
authorizes Congress to regulate interstate commerce directly; it does not
authorize Congress to regulate state governments' regulation of interstate
commerce." [42] Thus, even if Congress may use the
interstate commerce power to regulate the sale of handguns by federally licensed
firearms dealers, Congress does not have the power to order state governments to
regulate handgun sales according to a federal statute.

The Brady Act contained another
commerce power violation. The Act used the interstate commerce power to create a
cause of action against state employees in federal court. [43]
Overruling a 1989 case, the Supreme Court in 1996 ruled that the Eleventh
Amendment bars use of the interstate commerce power to create a civil cause of
action against state officers in federal court. [44]

IV. Brady and the Failure of the
Political Process

The most important purpose of the
judiciary in the American system of checks and balances is to rectify failings
in the political process, especially when those failings result in violations of
the Constitution. The Brady Act was a textbook case of failure in the political
process. A closer examination reveals other failures in the system.

The first failure of the system was
the intense political pressure on Congress to enact "get tough"
criminal legislation, regardless of whether such legislation was within
Congress's enumerated powers. *200This led Congress to its second failing--using state resources to pay for
programs that Congress wanted the credit for enacting, but not the burden of
enforcing. Finally, the Brady bill sponsors subverted the chances of a fair
fight in Congress in which state interests would be protected by drafting the
legislation so that some state delegations could vote to impose burdens that
would not be borne by their own state.

A. Symbolic Criminal Law

As Colorado federal district judge
John Kane pointed out in 1994, "[A]pparently irresistible political
pressures to be perceived as 'tough on crime' are driving Congress to federalize
crimes. . .in circumstances where clear- minded, objective analysis can discern
no meaningful effect on interstate commerce in the sense intended by the
Commerce Clause." [45] In a related context, Chief
Justice Rehnquist observed how political dynamics result in Congress enacting
mandatory minimum sentences which make for useful soundbites, but have little
serious justification: "Mandatory minimums. . .are frequently the result of
floor amendments to demonstrate emphatically that legislators want to 'get tough
on crime.' Just as frequently they do not involve any careful consideration of
the effect they might have on the sentencing guidelines as a whole." [46]

B. Use of State Resources as a
"Free Good" in Order to Respond to Political Pressure

Brady was enacted in a year when
the annual federal deficit was 203 billion dollars. [47]
Fiscal pressures therefore made it difficult to find the additional federal
money to enforce new federal laws. Hence, the temptation for Congress to
"do something" about crime, and to help itself to state resources in
order to do so, was particularly strong. In an obvious failing of the national
political process, Congress was enacting legislation, but using other people's
money to implement the legislation:

*201If Congress is allowed gratuitously to order the states to perform federal
tasks, it will not have to pay for what it gets. As ideas for federal projects
grow but resources lessen, the incentives will grow stronger for Congress to
command the state government to perform federal programs for free.
[48]

Conversely, requiring Congress to
use only federal revenues for federal projects helps ensure that Congress will
consider whether the benefits are worth the burden. "If the federal
government is willing to assume the full burdens of direct regulation it will
not impose regulations without carefully considering the costs involved." [49]

The Congressional conversion of
state resources endangers the function of states as social laboratories. For

[i]f the state's governmental
resources can be tapped for federal purposes, its will overborne by federal
directives, and its new ideas replaced with more nationally accepted ideas, we
will have fifty states that are mere reflections of the federal government.
The virtue of diversity should be guarded, when not at the expense of the
civil rights of state citizens. [50]

The function of States as social
innovators is one of their sources of strength in the federal system. To
diminish their ability to set their own policies--including their own policies
on controversial social issues like gun control--is to diminish one of the
important sources of citizen affection for their states. States will thereby be
less able to defend their rights effectively in the national political arena.

C. Unequal Distribution of the
State Burdens

Why should Congress vote to impose
the Brady Act's heavy burden on the states? Because the Brady Act drafted the
law so that legislators could impose the burden on other states, while leaving
their own state unharmed. The Brady Act was drafted in a manner such that
twenty-two states were exempted. [51]

*202While the bill was being debated on the floor of Congress, one legislator
after another would rise in support of the bill, proclaiming his satisfaction
that the bill would not apply to his State. [52] In the
House of Representatives, 75 percent (179 of 238) of votes to pass the bill came
from delegations whose States were exempted from the Brady Act. In the
Senate-supposedly the primary guardian of states' rights--two-thirds of the
"aye" votes came from exempted delegations. Of the state delegations
from which both senators voted "aye," 18 of the 19 delegations
represented states exempted from the bill. In contrast, of the state delegations
which unanimously voted "no," eleven of the twelve states were not
exempt.

Unjustifiably, the Brady Act burden
that fell on the non-exempt states was significantly heavier than the burden
which the exempted states had voluntarily assumed. Many state exemptions were
based on state laws requiring inquiry into fewer subjects than did the Brady
Act, or laws which did not even require a sheriff or police chief to perform any
inquiry at all before approving the handgun sale.

For example, Alabama and Tennessee
were exempt because they required handgun purchase notifications to be sent to
the police; the Alabama and Tennessee police were not required to conduct any
investigation of the handgun purchaser. [53] Many other
exempt states did not require the police to investigate handgun purchasers at
all, or required investigations much less extensive than the Brady
investigation.

Thus, the Brady Act was not a law
in which some states were brought up to a standard already achieved by other
states. To the contrary, Brady imposed an onerous burden on some states, while
other states were exempted from the burden, in exchange for voting to burden
their sister states.

The general problem of Congress
using state financial means to accomplish Congressional ends was acutely
aggravated. By selectively imposing the burdens of the law on only some states,
the sponsors of the bill executed a successful, calculated plan to undermine
ordinary state solidarity against large unfunded federal mandates.

*203

V. Federalism as a Civil Liberties
Guarantor

For most of American history the
Supreme Court has paid careful attention to the limits on federal power. But in
recent decades, some Supreme Court majorities have considered federalism to be
of no importance. The highpoint of Supreme Court rejection of federalism was the
majority opinion in Garcia v. San Antonio Metropolitan Transit Authority.
[54] The Garcia majority declared, in effect, that
the Court would refuse to enforce the Tenth Amendment. [55]
Supposedly, Congress was already so concerned about states' rights that judicial
review was not needed. [56] As shown by Printz, Lopez,
and other recent cases, several Justices of the Supreme Court (currently a three
or four vote minority) continue to reject any role for the Court in enforcing
constitutional limits on congressional power.

To place any item included in the
Bill of Rights beyond the scope of serious judicial review is to disrespect the
separation of powers by failing to perform the essence of judicial duty: to
enforce the Constitution. To declare the Tenth Amendment off-limits from
judicial protection is to abandon the first principle of federal jurisprudence,
that "[i]t is emphatically the province and duty of the judicial department
to say what the law is." [57]

As the Garcia dissent
recognized, "[t]he Tenth Amendment also is an essential part of the Bill of
Rights." [58] The Tenth Amendment cannot be shunted
into some kind of inferior class of constitutional citizenship under the
rationale that the first nine amendments guarantee individual rights, while the
Tenth Amendment guarantees state rights. Protection of the sovereignty of the
state governments means protection of the right of the individuals in every
state to govern themselves, rather than be governed by legislators chosen by
people from other states.

More fundamentally, the doctrine of enumerated powers (Congress may only
legislate on subjects over which the Constitution grants Congress authority), of
which the Tenth Amendment is the cornerstone, is an essential element in the
protection of all the Bill of Rights. *204As University of Tennessee law professor Glenn Harlan Reynolds explains:

With the demise of the doctrine
of enumerated powers as a restraint on federal power, the only protection
remaining for the liberties of citizens not sheltered by powerful lobbying
groups is that provided by the positive limitations on government embodied in
the Bill of Rights. Those provisions were inserted by pessimists who did not
believe--rightly, as it turns out--that the doctrine of enumerated powers
would be enough to restrain the federal government over the long term. There
is no reason to believe, however, that the Bill of Rights itself will survive
over the long term if the rest of the plan is abandoned. As National
Aeronautics and Space Administration engineers say, once you start relying on
the backup systems, you are already in trouble. To take one current example,
the pressure to ignore enumerated rights brought about by increased federal
responsibilities can already be seen in the calls for 'sweeps' of federally
funded public housing projects, sweeps that surely violate Fourth Amendment
rights. (citation omitted.)
What rights will be next? A federal government with unlimited responsibilities
is likely to demand unlimited power to discharge them and is unlikely to be
restrained for long by the Bill of Rights. The Framers anticipated that. We
should remember it.[59]

While the Tenth Amendment, by
ensuring the division of political power, plays a significant role in protecting
individual liberty, the protection of freedom is not the only benefit conferred
by the amendment's defense of federalism. As Steven Calabresi notes, the
principle of federalism makes a substantial contribution to domestic tranquility
in the United States, by assuring that many contentious, divisive moral issues
may have a multiplicity of resolutions, rather than a winner-take-all decision
at the national level. [60]

The Brady Act was the antithesis of
the pro-diversity approach inherent in the Constitution. A gun control law
rejected by the people and legislatures of 28 states was forced on those states
by congressional fiat.

*205

VI. Conclusion

The most important effect of Printz
was not on handgun sales. Post-Printz, many local law enforcement
officials chose to continue doing handgun checks voluntarily. More and more
states are setting up their own "instant-check" system for handgun
buyers (similar to a credit card verification), and thereby exempting themselves
from the Brady Act. Yet Printz was still a very important case.

Hanging in the balance in the Printz
case was the survival of states as states, rather than as administrative
subdivisions of the federal government.

"No one will take the
Constitution seriously if Congress and the courts refuse to do so,"
observes Professor Merritt. [61] The Brady Act's
unprecedented assault on the states and on constitutional federalism was the
result of decades of Supreme Court refusal to take federalism seriously. Printz,
like Lopez and other 1990s cases in which a slender Court majority has
begun to enforce constitutional limits on federal power, is welcome not just
because an unconstitutional law was stricken. Just as the Supreme Court's
consistent and commendable attention to the First Amendment has raised popular
consciousness about the importance of free speech, the Court's renewed attention
to the limits of federal power will remind both citizens and legislators that
the powers that the People granted to Congress in the Constitution are specific
and finite. And those powers surely do not include the power to dragoon state
employees into federal service.

Endnotes

[a1]. Adjunct Professor of Law, New York University School
of Law; Research Director, Independence Institute, Golden, Colorado; J.D., Univ.
of Michigan, 1985; B.A. in History, Brown University, 1982.

[20]. David McDowall, Preventive
Effects of Firearms Regulations on Injury Mortality, presented at the Annual
Meeting of the American Society of Criminology (1993) (on file with George Mason
University Civil Rights Law Journal).

[23]. See Handgun Control, Inc., What
You Should Know About the Brady Bill (brochure 1987) ("Handgun Control's
flagship bill, the Handgun Violence Prevention Act known as the 'Brady Bill' for
Sarah Brady, requires a seven-day waiting period for handgun purchases for both
dealers and individuals.") Later, the "Brady Bill" was said to be
named for Mrs. Brady's husband, James Brady.

[24]. See Erik Eckhom, A Little Gun
Control, a Lot of Guns, N.Y. Times, Aug. 15, 1993, at B1 (interview with Mrs.
Brady); Tom Jackson, Keeping the Battle Alive, Tampa Tribune, Oct. 21, 1993.
(Mrs. Brady states, 'To me, the only reason for guns in civilian hands is for
sporting purposes.'); In Step With: James Brady, Parade Magazine, June 26, 1994,
at 18 (Asked if handgun ownership was defensible, Mr. Brady replied, "For
target shooting, that's okay. Get a license and go to the range. For defense of
the home, that's why we have police departments.").

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